Fit For Duty Determination

[BMCM Ian McVicker]

Interesting subject we were discussing with legal while at PCO/PXO school in New London.

If you have a member report for duty, and physically appears to still be intoxicated from the night before, or severley hungover, how do you go about determining Fitness for Duty?

The example I threw out was putting the member in the GV and taking a ride down to the local police department to have them blow in the breathalizer. Legal? Not Legal? Let me know what you think.

Any other suggestions or past experiences please post.

Still waiting on an aswer from legal. It appears they are having a ball discussing this one. When I get their answer I'll post it.

[MKC Chad Royer]

Ian,

When I was an EOW on a larger cutter one of the members in the duty section showed up for duty very hung over. The member pretty much tried to shirk his duties (trade for a later watch & such) until I found out. I demanded to the OOD that the member be given a breathalizer and be booked for being drunk on duty (unfit for duty) and questioned how the member got to work that day, if he drove he had the possibility of a DUI or killing somebody.
Long story short, I was told the situation had been handled and to let it go.
I don't know if legal had anything to do with it.

Chad

[BMCS Mike Ellis]

Ian,
I don't treat it as a disciplinary situation at first. If no military treatment facility is near, then I take him to the local emergency room. Usually he's denying that he's intoxicated, so I need a doctor to tell me why he seems lethargic, with bloodshot eyes, etc. It's my concern for his safety and well being that causing me to take action.

Either he'll admit to being drunk or the doctor will tell me he is after conducting a few tests. Once the medical concern is alleviated....game on.:cool: It's worked for me anyway.

Mike

[DCCS Todd Holcomb]

Mike, NICE;) .

One of my past commands would have the local station BO administer a Breathalyzer for those who were late on their duty days, reeking, bloodshot eyes and so on... and would deny that they had been drinking.

Good question Ian, I would say yes just like getting booked for getting sunburned. When we sign the dotted line we are property of uncle sam and have all been advised at some point of our obligations and consequences should we fail to met them.

Todd

[HSC Chris Fly]

Don't forget that CG medical can only do a blood alcohol test for medical diagnostic purposes only.....we don't have a chain of custody established and it would get thrown out in court. I'm sure ERs and the larger MTFs have a chain, but I've never been to a clinic or heard of one that will do a BAC for legal purposes.
Chris

[BMCS Nick Pupo]

Chirs, you could still do one. Since a Mast, if it goes that far, is "non-judicial in nature" it's not a trial so the same rules do not apply.

[MKCM Brett Ayer]

This was a hot topic at the Navy Command Legal Course I recently attended.

I am not a lawyer, I have never been one and I did not stay at a Holiday Inn Express last night. However what I am telling you below has worked it's way through the courts and has been upheld under appeal.

If you suspect someone is drunk or impaired and have any plans to pursue UCMJ action you need to obtain a command search authorization before you do a breathalizer.

If you do not get a command search authorization, and do the breathalizer solely to determine health and safety, you cannot use the results to pursue UCJM action. You can however use the results to pursue administrative action (AI,etc.)

NJP, while not judicial is still legal and cannot be pursued.

The bottom line is you cannot violate a members 4th amendment rights and use the results to punish them. Keep in mind admin action is not punishment. Admin action includes everything from a page 7 to a discharge.

Be Safe,

Brett

[BMCM Ian McVicker]

Don't forget that CG medical can only do a blood alcohol test for medical diagnostic purposes only.....we don't have a chain of custody established and it would get thrown out in court. I'm sure ERs and the larger MTFs have a chain, but I've never been to a clinic or heard of one that will do a BAC for legal purposes.
Chris

That's a good point about medical Chris. I guess that would be a concern for some units, but a larger number of our units have no CG Medical and have to rely on other sources.

The legal aspect of our actions could be very interesting, and am curious to see how close CG legals answer is to what Brett posted.

Some of our sections of the CG (Aviation, Boat Forces, ect...) have specific regulations concerning consumption of Alcohol within so many hours of reporting for duty, which we lovingly refer to as the "Bottle to Throttle" rule. In the very near future a similar policy will also be released for the Cutter Forces, and probably anyone else leftover.

[BMCM Deane Smith]

I had this happen at my last station and what Brett said is pretty much how it went down. At a station where boat crews are in an alert status, the BOAT manual talks about alcohol consumption prior to duty. But, you still need to obtain the sample in a legal way. So, yes you need a command search authorization to have someone submit to a breathalizer. Also, you can always get consent from the member.

At an LE type unit with access to a breathalizer it's a little easier because you can do it in house. But, what Brett said should apply to all units. The key is getting the command search authorization prior to the sample.

As far as whether it would hold up at NJP if the search authorization wasn't done first? It's debatable. If, and only if, it stays at the level of NJP...it can be used. The NJP authority can use ANY information to make the decision as to impose NJP, it's when it goes above the NJP level where the problems will start.

[MKCM Brett Ayer]

Also, you can always get consent from the member.



This is so true and should be the first course of action. Just make sure you counsel them properly, don't coerce, and make sure they sign the form before blowing into the tube.

Also if you have someone that is BWI qualified you should not even need a breathalizer. A field sobriety test is not considered a search, and the testimony of a trained and qualified BO will stand up for both UCMJ and AI. Can anyone say pronounced horizontal nystagmus :)

On a side note, I once put someone on report for having a tongue stud while in uniform (third or 4th time he was talked to). It went to the command and the the lawyer that reviewed it asked "how we knew he had a tongue stud?"
The PO1 said "I though I saw it, so I told him to open his mouth and stick out his tongue".

The lawyer said that we should have gotten a command search authorization before telling him to stick out his tongue, because an individual may have a reasonable expectation of privacy in their mouth. The command refused to take him to mast. Who would have thunk.

Be Safe,

Brett

[BMCM Deane Smith]

The lawyer said that we should have gotten a command search authorization before telling him to stick out his tongue, because an individual may have a reasonable expectation of privacy in their mouth.


I don't think there's a reasonable expectation of privacy in the unemployment line!

[BMCS Burt Ford]

Well years ago at my unit I had a guy drunk in the morning. I asked to go over and have it done. He went. He was an SA so I dont know if he realized I was asking. Remember a command search is just taht, the OINC determines it needs to be done based on probable cause, FST's, write a quick letter and bang, that member blows!

[MKC Art Bailly (Ret)]

Interesting,
I had one of my guys not show up for duty. When his roommate went to get him he appeared to be drunk. Once on board 1 ½ hours later he was sent to the rack and his roommate stood by for him. He never received any type of testing for alcohol. He went to mast and received forfeiture of pay, restriction and reduction in pay grade for 60 days. When his time came up to put back on his crows we found out that he has to wait at least 5 months before he can get his crow back.

[OSC Delain Tate]

At my last unit, we had a young lad show up still smelling like beer...so after contacting the CDAR, then the VA Medical center (the only place at that time authorized for medical for active duty in my area) the CDAR, myself, and the young man in question went down for a urinalysis to see if any alcohol still existed in his system.

Long story short, the VA let the sample sit too long after it was given and so they couldn't test it for fear that the results would be inaccurate. The nurse also told me that they have the patient’s best interest in mind, not whether the CG wanted to discipline the member for possibly being intoxicated on duty.

-Delain

[BMCM Stuart S. Slesh]

Art, that's on the member. He accepted the NJP. What was he actually put on report for? Was it for consuming alcohol, drunk on duty,..... or not reporting for that duty? How far away was that room he was sharing? Why did it take him 1 1/2 hours to get back?
There's always more to a story, but just taking what you've given me I could justify taking him to Mast. If I had some amplifying information about his past performance and what actually happened that day, I could justify reducing him in rate. I've never heard of someone being reduced in rate for a said period of time..... reduction in rate is just that,..... and it's up to the individual to make themselves eligible for advancement again.


Brett, I've seen or heard of lots of people who submitted to tests because they always feel as though they didn't have the option to refuse. I'm going back now,...... but I remember people in Yorktown being pulled out in the halls on more than one occasion. I never remember it happening to an innocent person. People that don't want to follow the rules should at least learn their rights. The people who commit themselves to doing what's right, don't have to worry so much.

Ian, I think under our current situation...... it's easier to ask for forgiveness than ask for permission...... I would ask for consent. If I didn't get it, I 'd start building my probable cause case. The end result is that you're going to get what you want,..... you're going to hold that person accountable. Even if, on the extreme outside chance, they came back and said that you couldn't use those reults in a Mast, as Brett pointed out, they could still be used for an AI. Your message would still get out there. I don't see that happening. I think if you call someone on their alcohol use, they consent, and you're set. Even after they talk to that all knowing sea lawyer later that day on the Messdeck, if you start investigating, they back peddle and look for anything that will help them. The odds of this being the first time their alcohol use has affected their job, is probably pretty slim. How many of us didn't have a sit down with the person the first time we suspected something?

[BMCM Ian McVicker]

Got my answer back from legal, and Brett's info was closest.


If you take the member to the police department and order them to blow (which the CO/OIC is authorized to do) the results can be used for administrative actions only like AI, Admin Discharge, ect.

In order to use the results for ANY type of punishment, you must have either member consent, or Command Search Authorization. In this case the Breathalyzer is treated like Urinalysis.

Now, what direction you proceed I guess would be based on how you want to resolve the issue.

[DCCS Todd Holcomb]

In order to use the results for ANY type of punishment, you must have either member consent, or Command Search Authorization. In this case the Breathalyzer is treated like Urinalysis.

So does that mean that everytime they pull three numbers and say all who end with these go pee in the bottle, there has to be a command search authorization or consent from each member tasked to submit?? couldn't you do the same with the breathalyzer, pick some more last numbers and have a pool of members blow???

I am honestly asking as I'm not, nor will I ever be an OIC. I just always thought those two things were required when told to submit them.

Todd

[BMCM Ian McVicker]

So does that mean that everytime they pull three numbers and say all who end with these go pee in the bottle, there has to be a command search authorization or consent from each member tasked to submit?? couldn't you do the same with the Breathalyzer, pick some more last numbers and have a pool of members blow???

I am honestly asking as I'm not, nor will I ever be an OIC. I just always thought those two things were required when told to submit them.

Todd

No, because those are random tests performed by the command, which you perform not targeting one person. With the random tests you need to be able to show how it was truly random.

If you are having a member submit to an Urinalysis because you believe they may have used drugs, you are targeting that specific member. Same thing goes for the Breathalyzer.

Bottom line is if you order the member to blow without consent or search authorization, the results can be used for FFDD and Admin Actions. The command would not be allowed to take punitive action against the member because of 4th Amendment issues. Now, a command might still take the member to mast and hope that they don't challenge it, because it would be overturned.

Now, they did say you could a random Breathalyzer test like we do for Urinalysis, but it would need to be a normal occurrence, and they suggested having that written in the unit standing orders. I don't see this as a reasonable procedure to normally be done at the unit. This isn't about going on a witch hunt for folks who are consuming alcohol, (although I've seen some places getting close), but just dealing with the rare occasion one shows up intoxicated.

[MKCM Brett Ayer]

couldn't you do the same with the breathalyzer, pick some more last numbers and have a pool of members blow???

Todd

As long as it is a standard policy at the command and the decision is made to do it before you suspect someone of violating the UCMJ. This is fine, it falls under the definition of an inspection.

Once you suspect someone of a UCMJ violation, the whole "Lets do an inspection" thing becomes illegal.

The same applies for urinalysis. Say someone comes to you and tells you MK3 Overtorque was doing drugs last night at a party. You cannot order a pee test for the whole unit in order to get around the requirements for a search authorization. I take that back, you can order a pee test for the whole unit, but you can't use the results against the MK3 under the UCMJ.

Just for you trivia nuts, the Navy still allows Bread and Water as a punishment :)

Be Safe,

Brett

[DCCS Todd Holcomb]

Master Chief/ Ian, thanks. Makes sense now.

Master Chief, yes they do and the funny thing is that some commands will hold the Mast as early as possible so they can get the max hours out of the bread and water punishment. I have talked with several Chiefs when doing trips on the NAVY ships that said it wasn't uncommon for a CO to hold a mast at 0500 inport and confine the member right away and put them on rations immediately, rather than the ole mast to be held at 1000/1400 or later in the day. It's also my understanding that it was awarded on a number of days basis vice a number of hours, hence doing it early.

Todd

[BMCM Stuart S. Slesh]

Todd, I'm not in the Navy.... but I thought the punishment awarded started the day after the Mast....

[MKCM Brett Ayer]

Todd, I'm not in the Navy.... but I thought the punishment awarded started the day after the Mast....

I don't know for sure what the rules say in the Navy, but in the class most of the Navy CMCs told me they wait until the first day underway to hold the masts, so the member cannot turn down NJP, or go AWOL :)

What a way to live.

Brett

[DCCS Todd Holcomb]

Everyone I talked to about it said it started immediately, maybe it is the commands perogative????

[BMCM Stuart S. Slesh]

It may be Command perogative, I'm just remember seeing the people given the opportunity to purchase items before their restriction started.

Brett, ............ I'm not saying that doesn't happen, but if I were going to do an investigation or a climate assessment,....I'd start with units that had that attitude. Why would they want to wait to hold someone accountable until the person couldn't refuse the NJP? How strong is their case if they're worried that the person was going to fight it?
I'd take the opposite approach. I'd take them to Mast the day before I pulled in. That way their restriction and extra duty starts after we pull back in. Being restricted to the boat and having two hours of extra duty isn't really that bad when you're underway....... immediately after a patrol sends a better message.

[BMCS Mike Ellis]

I agree Stu. However, I don't know about the Navy's rules, but you don't actually have to be underway to lose the right to refuse NJP. You just have to be stationed afloat.

[DCCS Todd Holcomb]

I also think the bread and water is reserved for "confinement with bread and water". Just restricted members didn't get this punishment. That's the reason the CO's would do it so early, bang for buck, if you will. One day counted as one day no matter what time that day the confinement started.

Todd

[BMCS Jim Madsen]

Did I mention that I am glad I am in the COAST GUARD.

[MKCM Brett Ayer]

I agree Stu. However, I don't know about the Navy's rules, but you don't actually have to be underway to lose the right to refuse NJP. You just have to be stationed afloat.

I got the impression that when they sail, they have detachments aboard, that are not actually assigned to the vessel full time. Maybe this was for their benefit :)

I also got the impression that the Navy has "issues" that we don't seem have.

Be Safe,

Brett

[DCCS Todd Holcomb]

Did I mention that I am glad I am in the COAST GUARD.

The small amount of time I spent with the Navy while sattioned at TACLET was enough to make me realize I made the right career choice.

Todd